Mutual Trust As a Stumbling Block to the Accession of the EU to the Echr?

Whilst Article 67 TFEU conceives of respect for fundamental rights as an inherent limit to the development of the Area of Freedom, Security and Justice (AFSJ), the smooth functioning of justice apparently takes precedence over the protection of fundamental rights in the recent case law of the European Court of Justice.  In particular, in two judgements concerning different AFSJ policy areas (civil law: Zarraga, 2010; asylum law: N.S., 2011), the Court crafted, as a normative pre-condition for mutual recognition, an obligation of the Member States to presume, save in exceptional cases, that the other Member States ensure adequate protection to the fundamental rights guaranteed by the EU. Lastly, in its Opinion 2/13 of 18 December 2014, the ECJ regarded the safeguard of this “obligation of mutual trust between the Member States” (paras. 194) as a sine qua non condition for the accession of the European Union (EU) to the European Convention on Human Rights (ECHR).

The main purpose of the paper is to assess whether mutual recognition in the AFSJ and accession of the EU to the ECHR are mutually incompatible. As a first step, the relationship between mutual recognition and fundamental rights’ protection endorsed by EU primary law will be outlined. The consistency of the ECJ’s case law on the presumption of mutual trust with this framework will then be critically assessed. At the same time, attention will be paid to the approach of the European Court of Human Rights in cases involving AFSJ policy areas.